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September 19, 2000


The opinion of the court was delivered by: Glasser, United States District Judge


This action is before the court on defendants' and defendant-intervenor's joint motion to dismiss the Amended and Supplemental Petition pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs in this case are applicants for the Suffolk County Police Department who challenge a police officer examination developed and administered by Suffolk County (the "County") in 1999, following the entry in 1986 of a Consent Decree in United States v. Suffolk County, No. 83-CV-2737 (E.D.N.Y. Sept. 12, 1986) (Nickerson, J.). The parties entered into the Consent Decree after longstanding litigation challenging Suffolk County's pattern or practice of engaging in employment discrimination against women, blacks and hispanics with respect to the hiring of police officers. The Consent Decree committed the County to reform certain selection criteria and personnel practices and also prescribed certain limits on the County's use of examinations in hiring. To date, the County has complied with the hiring provisions of the Consent Decree. It is now faced, however, with this challenge by plaintiffs, who maintain that the County's 1999 version of the police officer examination is flawed both in its design (it fails to fairly assess applicants' merit and fitness and eliminates testing variables that assess cognitive abilities) and in its administration (it permits the arbitrary and capricious manipulation of raw test scores). These shortcomings together, contend plaintiffs, violate the terms of the Consent Decree itself (¶¶ 11, 14, 15, 16, 18); the Tenth Amendment (¶¶ 38, 39, 40, 41, 45); the privileges and immunities clause of the Fourteenth Amendment (¶¶ 47, 55); 42 U.S.C. § 2000e(7) (¶ 55); Article V, § 6 of the New York State Constitution (¶¶ 8, 9, 10, 35, 36); New York Civil Service Law § 50(6) (¶¶ 8, 9, 25, 32); Suffolk County Code § 580 (¶¶ 8, 9, 26, 27, 28, 29, 30, 32); New York State's requirement for veteran's preference points (New York State Constitution Article V, § 6, New York State Civil Service Law § 85) (¶¶ 49, 50, 54); and New York General Business Law § 349 (¶ 61). Plaintiffs seek an order to enjoin the County from using the results of the 1999 examination and to compel the County to regrade the examination in a manner that complies with relevant state and local laws.

Because the Petition does not allege facts sufficient to support either a theory of disparate treatment or impact, plaintiffs do not state a claim of reverse discrimination under Title VII. As for plaintiffs' remaining claims, which are predicated entirely in the 1986 Consent Decree itself and in other provisions of federal, state and county law, these also fail to allege facts sufficient to establish liability on the part of the County, and defendants' and defendant-intervenor's motion to dismiss therefore are granted.


A. The Underlying Title VII Action

In 1983, the United States filed a civil action against the County, the Suffolk County Police Department (the "SCPD"), its Police Commissioner, and the County's Civil Service Commission alleging, among other things, that the County had engaged in a pattern or practice of employment discrimination against women, blacks and hispanics with respect to job opportunities in the SCPD, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. See United States v. Suffolk County, No. 83-CV-2737 (E.D.N.Y. Sept. 12, 1986) (Nickerson, J.) After some three years of litigation, the parties entered into a Consent Decree that was approved and entered by the Court on September 12, 1986. In the Consent Decree, while the County expressly denies that it had discriminated against women, blacks or hispanics, it acknowledges that certain of its selection criteria and personnel practices and the substantial underrepresentation of women, blacks and hispanics in the SCPD could support an inference that discrimination had occurred. (Decree, ¶ 7)

The Consent Decree expressly prohibits the County from engaging in any further discrimination (Decree, ¶ 2), requires monitoring by the United States of the County's compliance with the Decree (Decree, ¶¶ 32-35), and provides that the Court retain jurisdiction of the United States' action against the County for the purpose of implementing the relief provided in the Decree, as well as "to effectuate Suffolk County's full and complete compliance with Title VII." (Decree, ¶ 37)

The Consent Decree specifically enjoins the County from using any qualifications or selection criteria for hire, assignment, transfer or promotion within the SCPD that would result in disparate impact upon women, blacks or hispanics, unless such qualifications or criteria have been validated in accordance with the Uniform Guidelines on Employee Selection Procedures, issued pursuant to 28 C.F.R. § 50.14 and 29 C.F.R. § 1607, and, thus, are lawful under Title VII. (Decree, ¶ 9) In this regard, the Decree requires the County through its consultant at the time, Richardson, Henry, Bellows & Co. ("RBH"), to undertake a criterion-related validity study of RBH's written entry-level law enforcement officer examination to determine if the RBH examination was appropriate under Title VII for use by the County in the selection of candidates for the position of entry-level police officer in the SCPD. (Decree, ¶ 4) That study was subsequently undertaken and completed; the parties agreed that the RBH-developed examination could be lawfully used by the County under Title VII. At the request of the parties, the Court approved the County's administration of the RBH examination (then scheduled for April 16, 1988) and the County's subsequent use of the results of that examination. (April 12, 1988 Consent Order) Significantly, the April 12, 1988 Consent Order neither requires that Suffolk County continue to administer and use the RBH-developed examination, nor prohibits the County from doing so.

The 1986 Consent Decree does not call for the approval by the Court of any qualifications or selection criteria for employment in the SCPD other than for the County's initial use of the RBH-developed written examination. Instead, and consistent with the monitoring responsibilities of the United States under the Consent Decree, the Consent Decree provides only that the County provide the United States with at least 90 days notice prior to the implementation of any changes to such qualifications or selection criteria. (Decree, ¶ 8)

Consistent with the Consent Decree, the County has continued to consult with the Department of Justice on recruitment procedures and on the construction of civil service examinations designed to screen potential officers for the SCPD. The County administered the RBH examination in 1988, 1992 and 1996. (Amended Petition, 4) On May 22, 1999, following an independent review conducted by the DOJ, the County administered another such examination, developed by SHL Landy, Jacobs (the "SHL Exam") to SCPD applicants. It is this examination that plaintiffs in the instant action challenge.

B. The Carrabus Plaintiffs

On May 17, 2000, plaintiffs commenced a CPLR Article 78 proceeding in New York Supreme Court seeking judicial review of the County's hiring test. Also on May 17, 2000, plaintiffs presented the state court with an order to show cause why the County should not be preliminarily enjoined from both hiring any police officers and using the results of the 1999 tests for any purpose pending the hearing and determination of plaintiffs' claim. The state court granted plaintiffs' request for a temporary restraining order prohibiting the County from hiring police officers, but did not grant plaintiffs' request to enjoin defendants from using the test for any purpose. On May 22, 2000, the return date on the order to show cause, defendants filed a notice of removal from state court to federal court. Plaintiffs moved to remand to state court on June 19, 2000. On June 20, 2000, the United States intervened as a party defendant and, on June 28, 2000, together with the County, opposed the motion to remand. Also on June 28, 2000, the County moved to vacate the state court restraining order. This court denied plaintiffs' motion to remand and found moot defendants' motion to vacate the state court restraining order in an order dated July 28, 2000, familiarity with which is presumed. On August 25, 2000, defendants and defendant-intervenors jointly filed the present motion to dismiss the amended and supplemental petition.


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